DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 14 of 18.1.2017
Decided on: 10.1.2018
Kulwinder Singh s/o Sh.Paramjit Singh r/o village Khizergarh Karala, SAS Nagar, Mohali, Punjab.
Complainant
Versus
1. National Insurance co.Ltd. through its branch manager, 115 Guru Nanak Colony, Rajpura District Patiala, Punjab-140401.
2. Hira Automobiles Ltd. through its Managing Director, Village Badak, Rajpura- Patiala Road, Rajpura-140401.
Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Jagvir Sharma, Advocate, counsel for complainant.
Sh.Alok Mathur, Advocate, counsel for
opposite party No.1.
Sh.Rakesh Kumar Garg, Advocate,
counsel for opposite party No.2.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh.Kulwinder Singh, complainant has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.)
The brief facts of the complaint are that the complainant purchased one Maruti Swift Dzire (VDI for a sum of Rs.6,80,482 on 16.10.2015 from OP no.2 and the same was got insured from the OP no.1. The same was also got registered with the Registration Authority on 10.3.2016 vide registration No.PB-39-E-3333. It is stated that the aforesaid vehicle met with an accident. The complainant approached OP no.1 for the claim and submitted all the requisite documents with it. OP no.1 delayed the matter and on 12.9.2016 asked the complainant for the sale invoice. He replied the said letter vide letter dated 5.10.2016.Thereafter, he received letter dated 9.11.2016 from the office of OP no.1 stating therein that aforementioned vehicle was firstly purchased by one Sh.Barinder Singh and was insured with IFFCO Tokio vide policy No.88971975 dated 16.10.2015 and was in use on the road since then. The first free service was availed on 10.11.2015. The insurance with IFFCO TOKIO was cancelled and then presented as NEW vehicle to National Insurance Co. Ltd. and got insurance policy bearing No.401402/31/15/6100002546 w.e.f. 26.11.2015 for the same. It is also stated in the said letter that as to why the policy may not be cancelled ab-initio on the ground of concealment/misrepresentation of facts. The non payment of the insured amount by OP no.1 amounted to deficiency of service .Hence this complaint with a prayer that in case the vehicle is found not repairable, OP No.1 may be directed to pay the IDV of the vehicle in question alongwith interest from 27.4.2016 and if the same is repairable same may be got repaired from Op no.2 and also to pay compensation.
On being put to notice, OPs appeared and filed their separate written versions. In the written version filed by OP no.1 it has taken preliminary objection that the complaint is premature and is liable to be dismissed being not maintainable. On merits, it is stated that Maruti Swift Dzire VDI bearing engine No.2672612, chassis No.823541 was sold to Sh.Barinder Singh by the dealer on 16.10.2015 and was got insured from Iffco Tokio General Insurance Co. Ltd. vide policy No.88971975 dated 16.10.2015 but he could not get bank loan arranged. Then the loan was got arranged in the name of Mr.Kulwinder Singh and the car in question was shown delivered to him on 26.11.2015 and got the same insured in his name from National Insurance Co. Ltd. by presenting the vehicle as New. It is admitted that policy bearing No.401402/31/15/6100002549 has been obtained by the complainant. As per service record, first service of the vehicle in question was done on 10.11.2015 at M/s Hira Automobiles, Rajpura with meter reading 1800KM. The job slip dated 29.3.2016 for major repairs is in the name of the complainant but signed by Barinder Singh. There has been concealment and misrepresentation offacts by the complainant. As a result OP no.1 was prevented from appreciating the risks involved and accepting the proposal for insurance .Vide letter dated 9.11.2016 complainant was asked as to why policy may not be cancelled ab-initio from the date of commencement of the same and cancellation of policy ab-initio will also be reason for non payment of any claim but the complainant did not give any reply to the said letter. Due to his own act & conduct, the complainant is not entitled for any compensation. After denying all other averments made in the complaint, it was prayed to dismiss the complaint.
In the written version filed by Op no.2 it is stated that the complainant has failed to show any deficiency of service on its part and the complaint filed against OP no.2 is liable to be dismissed.
On being called to do so, the ld.counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Exs.C1 to C9 and closed the evidence of the complainant.
The ld.counsel for the OP No.1 has tendered in evidence Ex.OPA affidavit of Sh.Khushwant Verma, alongwith documents Exs.OP1 to OP19.
The representative of Op no.2 tendered in evidence his own affidavit Ex.OPB alongwith document Ex.OP20 and closed evidence of OP no.2.
- We have heard the ld.counsel for the parties and have also gone through the record of the case, carefully.
7.The ld. counsel for the complainant has submitted that the complainant had purchased the car in question from OP no.2 after having paid a sum of Rs.6,80,482/ i.e. the ex-showroom price of the new car . The said car met with an accident and the complainant lodged the claim with the OP no.1, but it repudiated the same vide letter dated vide letter dated 9.11.2016,Ex.C8 , which amounted to deficiency in rendering services on its part. The OP No.1 may be directed either to pay the IDV of the car in question in case, it is not repairable alongwith interest or to get the same repaired from OP no.2, if it is repairable. The ld. counsel for OP no.2 has submitted that since the car in question was duly insured with the OP no.1, therefore, OP no.1 is liable to indemnify the complainant suffered by him as per the policy. Therefore, the complaint filed against it may kindly be dismissed.The ld. counsel for Op no.1 has submitted that the impugned car was first sold to one Mr.Barinder Singh and the same was got insured from IFFCO TOKIO General Insurance Co. vide policy No.88971975 dated 16.10.2015 and was on the road since then. After getting cancelled the said insurance from the IFFCO TOKIO General Insurance Co. Ltd., the insurance of the said car was taken from OP no.1 by presented the same as “NEW” . Since the complainant has taken the insurance policy in question by mis representation, therefore, it is not liable to pay any claim against the said car.
8. There is no dispute about the fact that the complainant had purchased the car in question from Op no.2.Even it is not disputed that the complainant got the said car insured from OP no.1 for the period from 26.11.2015 to 25.11.2016. From the perusal of the letter dated 30.11.2015, annexed alongwith the investigation report dated 9.7.2016 Ex.OP19,it is evident that Hira Auto Mobiles i.e. OP no.2 requested the Branch Manager of IFFCO TOKIO General Insurance Co. Ltd., Patiala, for cancellation of policy No.88971975 dated 16.10.2015, issued in the name of Barinder Singh, for the car Desire VDI bearing chassis No.823541, engine No. 2672612 and for refund of the amount of Rs.24,695/- paid as premium, for the reason that said Barinder Singh failed to avail loan in his name and the car in question was sold to Kulwinder Singh i.e. complainant. From the copy of job card, Ex.OP4, it is apparent that first service of the said car was availed by said Sh.Barinder Singh on 10.11.2015 . It is not out of place to mention here that the job card dated 29.3.2016, Ex.OP11 was created in the name of Sh. Kulwinder Singh but it was signed by Sh.Barinder Singh. Thus, from the documents referred above, it is proved that OP no.2 prior to selling the car in question to the complainant had sold the same to Sh.Barinder Singh. Here it may be stated that no such document has been placed on record by OP no.2 to prove that it had explained the factual position regarding the selling of the car in question to Barinder Singh before selling it to the complainant and he agreed to buy the said car. Thus in the absence of any documentary proof, it can be said that OP no.2 had concealed the factual position from the complainant at the time of selling the said car to him. From the invoice dated 16.10.2015,Ex.C1, it is evident that the complainant had paid Rs.6,80,482/- to OP no.2 for the purchase of the car in question. As per the complainant this is ex-showroom price of the said car. This fact has not been rebutted by OP no.2. Since the complainant had paid the price to OP no.2 for the purchase of a new car, therefore, he had got the insurance policy from OP no.1 by presenting the said car as “New” and as such the complainant cannot be said to be at fault. In view of the aforesaid facts and circumstances of the case, we are of the view that OP no.2 has committed deficiency in service by not disclosing the true facts to the complainant regarding selling of the car in question earlier to Sh.Barinder Singh and subsequently to him. Thus, it is liable to bear the expenses of the repair of the car in question. Not only this, it is also liable to pay compensation for causing mental agony and physical harassment to the complainant & cost of litigation. No liability can be fastened upon OP No.1 as the complainant has failed to prove any deficiency in service on its part.
9. In view of the aforesaid discussion, we dismiss the complaint against OP no.1. The same is allowed against OP no.2 and it is directed in the following manner
- To repair the car in question, free of cost and make the same roadworthy.
- To pay Rs.10,000/- as compensation for causing mental agony and physical harassment to the complainant
- To pay Rs.5000/- as cost of litigation
The OP No.2is further directed to comply the order within a period of 45 days from the date of receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:10.1. 2018 NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
